Jones v. Memorial Hosp. System, 01-84-0206-CV

• Decision Date: 30 August 1984
• Docket Number: No. 01-84-0206-CV,01-84-0206-CV
• Citation: 677 S.W.2d 221
• Parties: 117 L.R.R.M. (BNA) 2915 Pamela Sue JONES, Appellant, v. MEMORIAL HOSPITAL SYSTEM, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 221

677 S.W.2d 221

117 L.R.R.M. (BNA) 2915

Pamela Sue JONES, Appellant, v. MEMORIAL HOSPITAL SYSTEM, et al., Appellees.

No. 01-84-0206-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 30, 1984.

Stefan Presser, American Civil Liberties Union, Houston, Peter Linzer, Houston, argued, for appellant.

Martin D. Beirne, Fulbright & Jaworski, Carol S. Butner, Fulbright & Jaworski, Houston, for appellees.

Before EVANS, C.J., and WARREN and BULLOCK, JJ.

OPINION

EVANS, Chief Justice.

This is an appeal from a summary judgment entered in favor of the defendants, Memorial Hospital System, its president, R. William Warren, and its personnel director, Gene Ross.

In her petition, the plaintiff, Pamela Sue Jones, alleged that the defendants infringed her right to freedom of speech under article 1, section 8 of the Texas Constitution by terminating her employment with Memorial Hospital System. She also pleaded an action for slander, but that claim was later nonsuited. The trial court granted the defendants' motion for summary judgment, concluding, as a matter of law, that the plaintiff could not recover on her stated cause of action.

The plaintiff, a registered nurse, had been employed in the intensive care unit of Memorial Hospital. While so employed, she wrote an article which was published in a local Houston publication, Inner-View, critically describing the conflict between the wishes of terminally ill patients and their families and the orders of the attending physicians. Although the defendants contend there was a legitimate basis for the plaintiff's discharge other than the publication of the article in question, they concede in their briefs and statements at oral submission that the summary judgment proof does not conclusively establish the reason for the plaintiff's termination.

Thus, we must decide whether the summary judgment record conclusively establishes that the plaintiff cannot recover on her claim that she was deprived of her right to free speech under article 1, section 8 of the Texas Constitution. Stated otherwise, we must ascertain whether the defendants met their burden of showing, as a matter of law, that the plaintiff has no cause of action against them. See Bradley v. Quality Service Tank Lines, 659 S.W.2d 33 (Tex.1983); Neigut v. McFadden, 257 S.W.2d 864 (Tex.Civ.App.--El Paso 1953, writ ref'd n.r.e.).

Tex. Const. art. 1, sec. 8 provides that:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.

There are no reported cases applying this constitutional provision to an employment relationship. We decline to construe the Texas free speech provision as giving less protection to employees than that afforded by the First Amendment to the United States Constitution, and so we look to federal first amendment cases for guidance.

We first consider whether the plaintiff's conduct was constitutionally protected. The federal courts have declined to require protection of speech on matters solely of personal interest. To be entitled to first amendment protection, speech must relate to matters of "political, social, or other concern to the community." Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983).

The article written by the plaintiff concerned the conflict between the duty of hospital personnel to prolong life and the right of patients to die with dignity. The plaintiff expressed her viewpoint and feelings as a nurse, caught between the doctor who gave the orders and a patient whose desires were being ignored. She stated her views in very personal prose, using a case history which, according to her testimony at deposition, was a fictitious blend of actual cases. Although she signed her own name to the article, she did not implicate any individual physicians or Memorial Hospital. When she submitted the article for publication, she told the editor that the patient's name was fictitious. After the article was published, the plaintiff handed out copies to her co-workers at the hospital, including her supervisor.

The ethical and social questions concerning a patient's right to die were and continue to be matters of public concern, and the plaintiff's article contributed to the public forum a viewpoint that might not otherwise be considered. The article represents a type of speech entitled to constitutional protection so as "to assure unfettered interchange of ideas for the bringing about of political and social changes." Connick v. Myers, 103 S.Ct. 1684 at 1689, quoting from Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957).

Although the plaintiff based the article on experience acquired in her work for the hospital, she evidently wrote the article on her own time and submitted it to the newspaper. Her expression, therefore, did not interfere with her work performance or with her employer's business, but rather was intended to inform and provoke the interest of the public on a controversial public issue. We find that the context, form, and content of the article accords it the status of speech constitutionally protected from employer infringement. Connick v. Myers, supra. We next consider whether the plaintiff has stated a cause of action recognizable under Texas law.

The courts of Texas have strongly adhered to the position that, in the absence of a contractual provision to the contrary, an employer and an employee are free to terminate their relationship at any time, for any reason, or for no reason at all. See East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99 (1888); Molder v. Southwestern Bell Telephone Co., 665 S.W.2d 175 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.); Maus v. National Living Centers, Inc., 633 S.W.2d 674 (Tex.App.--Austin 1982, writ ref'd n.r.e.).

In Maus, supra, the plaintiff, a nurse's aide, sued her employer, a nursing home, alleging that as a result of her complaints to her superiors about poor care and neglect of patients, and in retaliation therefor, she was fired from her job. The trial court entered a take-nothing judgment. The appellate court affirmed, citing the settled state of Texas law on the subject. In its opinion, the Austin Court of Appeals concluded that, because the Texas Supreme Court had not passed on the question of retaliatory discharge, it was not proper for it, as an intermediate court, to recognize an...